[00:00:11] Speaker 00: The final case for argument this morning is 18-1316, ABC Telecommunications versus United States. [00:00:57] Speaker 00: OK, I think we're ready. [00:00:58] Speaker 00: Good morning. [00:00:59] Speaker 02: Good morning, Your Honors. [00:00:59] Speaker 02: May it please the court? [00:01:00] Speaker 02: I'm Michael Roll from Fasani and Roll on behalf of the Appellant ADC. [00:01:06] Speaker 00: Why is this a test case? [00:01:07] Speaker 00: Is it for purposes of identifying whether the criteria, whatever we're going to call it, factor criteria, whatever, including the vision part of it, applies? [00:01:19] Speaker 02: So this case was designated as a test case, although, just under normal CIT procedure that [00:01:25] Speaker 02: You know, every shaman has its own sort of life, if you will. [00:01:28] Speaker 02: Entry liquidates has to be protested, taken to the CIT. [00:01:31] Speaker 01: How many do you have? [00:01:33] Speaker 02: We have 16, either 15 plus this or 16 plus this, but roughly 16. [00:01:38] Speaker 01: Oh, I see. [00:01:38] Speaker 02: OK. [00:01:39] Speaker 02: And then there's another parallel case that we're not counsel on called the FKD or FDK, which the judge below stayed proceedings in that case because we have a common legal issue pending this. [00:01:51] Speaker 02: So the first thing we wanted to address was what I think is hopefully the easiest issue in the case, which is the applicability of 8517. [00:01:57] Speaker 02: I know that sort of begs the question, because we're here to talk about, is it 9013 or 8517? [00:02:02] Speaker 00: And if it's 9013, if we think it fits in 9013, we don't reach the issue, right? [00:02:08] Speaker 02: Correct. [00:02:09] Speaker 02: But I wanted to address the 8517 issue, because the judge. [00:02:14] Speaker 01: Well, before we do that, since you're on that, if we determine that 9013 covers the subject, [00:02:20] Speaker 01: merchandise, would you agree that 90-13-80-90 would be the appropriate subheading for the other? [00:02:29] Speaker 02: Yeah, I would like that, but yes, I would agree. [00:02:30] Speaker 02: That would be the outcome. [00:02:32] Speaker 02: And note 1M to section 16, if you felt the chapter 90 provision, specifically the provision you referenced, was the correct one, that would end the inquiry. [00:02:41] Speaker 02: Because of note 1M to section 16, we would agree with that as well. [00:02:44] Speaker 02: I mentioned that too, because in the court below, there's reference to us engaging in some kind of specificity argument. [00:02:50] Speaker 02: saying, well, both sort of described it. [00:02:52] Speaker 02: We were trying to argue that 8517 was more specific. [00:02:56] Speaker 02: We made no such argument below. [00:02:58] Speaker 02: The point is we have to decide, is it in chapter 90? [00:03:02] Speaker 02: And if it's not, which is our contention, then it goes in 8517. [00:03:08] Speaker 02: But there was reference also in the red brief that we never really made our case for 8517 in any event. [00:03:13] Speaker 02: So if you felt that it didn't go in 9013, that we didn't make the case, [00:03:17] Speaker 00: I was going... You've got a short period of time, so why don't I... Sure, we'll turn to the Chapter 90 provision. [00:03:21] Speaker 00: Yeah, which is the major issue. [00:03:24] Speaker 03: And Celestere in particular, which involves a different heading than the one we're dealing with here, which was 1914 as opposed to 1913. [00:03:37] Speaker 03: So in some sense, it seems to me the question [00:03:40] Speaker 03: we're dealing with is whether similar language into separate headings can have different meanings, because we're bound by the meaning that Celestere gave to the optical instrument language in that context, but it wasn't dealing with the same heading that we're dealing with here. [00:04:01] Speaker 02: But the operative language was the same. [00:04:02] Speaker 02: That is correct. [00:04:03] Speaker 02: It was a different heading. [00:04:04] Speaker 03: Right. [00:04:04] Speaker 03: So the question is whether different language in different headings [00:04:08] Speaker 03: The same language in different headings can have different meanings depending on the context. [00:04:13] Speaker 03: And the earlier decision in ALTA, whatever the name of it is. [00:04:20] Speaker 03: That's HACA case. [00:04:22] Speaker 03: Yeah, it seems to suggest that maybe that could be true. [00:04:25] Speaker 03: So isn't that the crux of what we're dealing with here? [00:04:28] Speaker 02: I mean, I would say factually it is correct. [00:04:33] Speaker 02: It is a different provision, 9013 in this case, versus Celestere. [00:04:37] Speaker 02: That is factually correct. [00:04:39] Speaker 02: But I don't think that distinction should make a difference. [00:04:42] Speaker 01: What about this distinction? [00:04:44] Speaker 01: In ITAKA and in Celestere, we identified three criteria relevant to determining whether an imported product is an optical instrument. [00:04:56] Speaker 01: But it's pretty clear from ITAKA and Celestere following it, you don't have to apply all three. [00:05:03] Speaker 01: You don't have to satisfy all three criteria, do you? [00:05:07] Speaker 02: I don't read those cases that way. [00:05:09] Speaker 02: In other words, the Celestere case says you have to satisfy all three criteria. [00:05:16] Speaker 02: The long line of cases is... What do you understand? [00:05:19] Speaker 03: The sentence in Ataka, none of the foregoing criteria is determinative in every case. [00:05:25] Speaker 03: What does that mean? [00:05:27] Speaker 01: If it doesn't mean that, what does it mean? [00:05:30] Speaker 02: Well, there was language that dicta, first of all it was dicta in Ataka, [00:05:35] Speaker 02: And I think the struggle over the years in developing criteria to determine what does it mean to be an optical instrument started back in the tariff studies back in the 1920s and sort of changed. [00:05:47] Speaker 02: Originally the criteria was chief use or predominant use. [00:05:51] Speaker 02: Then that morphed over time. [00:05:53] Speaker 02: So I think the court with that statement was trying to say that for purposes of figuring out whether something's an optical instrument, we have to look at [00:06:02] Speaker 02: not just those criteria, but also common sense. [00:06:04] Speaker 02: There was this element of common sense that came into it as well. [00:06:08] Speaker 01: But the fact that... Solastair was a sextant. [00:06:13] Speaker 02: Correct. [00:06:13] Speaker 01: That involved actually aiding the user to look through the sextant, correct? [00:06:21] Speaker 01: Yes. [00:06:22] Speaker 01: So there is a substantial difference between that and the devices which act on light here. [00:06:32] Speaker 01: Is there not? [00:06:33] Speaker 02: But this idea that we have different tariff provisions at issue, so that should make a difference. [00:06:36] Speaker 02: The idea that there's a sextant, and this is something that's nothing like a sextant, that that should make a difference. [00:06:42] Speaker 02: All of the cases involving obstacle instruments involve different cases and different tariff provisions. [00:06:46] Speaker 02: Yet the common thread throughout all of them are those three criteria, four criteria under the old Engis case in the predecessor tariff schedule. [00:06:54] Speaker 02: So the fact that the merchandise that the judge below said is different here, and that should make a difference, it means Celestair doesn't apply. [00:07:00] Speaker 03: I think, at least in my view, there's a difference between saying under a particular heading we go article by article and we might apply different tests to those articles. [00:07:16] Speaker 03: It seems to me it's a little strained. [00:07:20] Speaker 03: In other words, if you're under one heading, it seems to me you've got to apply the same test to all the articles under the heading. [00:07:26] Speaker 03: But Ataka may be suggesting that [00:07:30] Speaker 03: similar language in different headings may, depending on the context, have different meanings. [00:07:36] Speaker 03: And for example, in 9013, you have this reference to lasers, which might suggest that aiding human vision is not part of what's necessary in an optical instrument. [00:07:48] Speaker 03: Do you understand what I'm saying? [00:07:49] Speaker 02: Yes, but heading 9013 covers, it was also discussed in the red brief about the aonominy issues that are going on there. [00:07:58] Speaker 02: that lasers and the other things in the semicolons in 9013 are different categories of goods. [00:08:03] Speaker 02: So just because a laser might be infrared and therefore not subject to human vision, that doesn't mean that for everything in that heading, the same criteria applies, that the semicolons are important in the heading. [00:08:13] Speaker 03: But is it your theory that identical language referring to optical instruments can have different scope depending on the heading and the context? [00:08:24] Speaker 02: I mean, for predictability purposes and uniformity of the customs laws, [00:08:27] Speaker 02: The fact that the phrase optical instrument is found in this heading, and it's found in this heading, and in another place in the tariff, the meaning shouldn't change based upon which heading it falls in, unless there's a good reason for it. [00:08:39] Speaker 02: So let's say, for example, Celestier doesn't apply. [00:08:41] Speaker 02: At the end of this, the court concludes, it's a different heading in 1915. [00:08:45] Speaker 02: We've got a clean slate here. [00:08:47] Speaker 02: To me, the question still becomes, what should the rule be for 1913? [00:08:53] Speaker 02: Let's look at that for a minute. [00:08:55] Speaker 02: The explanatory notes of chapter 90 [00:08:57] Speaker 02: state that from headings 90-04 through 90-12, we have all things that are for aiding or enhancing human vision, specifically with exact languages. [00:09:08] Speaker 02: A wide group comprising not only simple optical elements of heading 90-01 and 90-02, but also, this is referencing what the chapter covers, optical instruments and apparatus ranging from spectacles of heading 90-04 to more complex instruments using astronomy, photography, cinematography, [00:09:24] Speaker 02: or microscopic observations, the common thread in all that is human vision, things that you can see. [00:09:30] Speaker 02: So even if we say celestial doesn't apply, we have to have a new rule from this case as to what 9013 optical instrument means. [00:09:37] Speaker 02: It seems to me from the context of the statute, the meaning should be something about aiding or enhancing human vision. [00:09:43] Speaker 02: I think that's correct. [00:09:43] Speaker 01: As opposed to affecting light. [00:09:46] Speaker 02: Correct. [00:09:46] Speaker 02: Because affecting light is just optics. [00:09:50] Speaker 02: We've conceded in our brief that all these items have optical elements in them. [00:09:54] Speaker 02: But clearly just because you have optical element in your product doesn't mean that everything with an optical element is an optical instrument. [00:10:01] Speaker 02: I think that's a really important point. [00:10:04] Speaker 02: And the cases throughout the years, the American Metal case that was discussed quite a bit in the red brief, makes very clear that just because you have an optical something in your product doesn't mean you're optical, right? [00:10:16] Speaker 02: The note three to chapter 90, or additional US note three to chapter 90 that's referenced for what the term optical instrument means [00:10:23] Speaker 02: It's not setting forth a definition. [00:10:26] Speaker 02: It's setting forth just a necessary condition. [00:10:30] Speaker 02: So I think you'd still have to define for purposes of 9013, well, what are we going to mean here? [00:10:35] Speaker 02: What does optical instrument mean? [00:10:38] Speaker 02: Put celestera aside, even though I don't think that would be correct. [00:10:40] Speaker 02: But if that was your decision, you have to look to me at the context of the statute. [00:10:45] Speaker 02: And all those things are about human vision. [00:10:48] Speaker 02: More importantly, the explanatory note. [00:10:50] Speaker 01: Well, again. [00:10:52] Speaker 01: Note three, which explains the term optimal appliance and optimal instruments, refers only to those appliances and instruments which incorporate one or more optical elements. [00:11:08] Speaker 01: And then we go to dictionaries. [00:11:13] Speaker 01: Dictionaries define optical as of or relating to optics. [00:11:18] Speaker 01: And there's a long analysis you can go through in the dictionary definitions. [00:11:23] Speaker 01: which take you out the other end as a science that deals with light. [00:11:26] Speaker 01: It's genesis and propagation. [00:11:30] Speaker 01: And if you go down that road, you lose, don't you? [00:11:34] Speaker 02: Yes, but I think the short answer is yes, I would lose if you're going to just stick with that definition. [00:11:40] Speaker 02: But I would say that wouldn't be correct for the court to do. [00:11:42] Speaker 02: Why? [00:11:43] Speaker 02: Because you also have to look at it. [00:11:44] Speaker 01: Because of celestera. [00:11:45] Speaker 01: No, no, no, no. [00:11:46] Speaker 02: Even before putting celestera aside, I'm going to concede. [00:11:49] Speaker 02: I mean, I'm not conceding celestera. [00:11:50] Speaker 02: But I'm assuming Arthur wins over putting celestera to the side. [00:11:53] Speaker 02: You would still have to say, all right, is that definition too broad, for example? [00:11:57] Speaker 02: Because what's going to get picked up in that broad definition? [00:12:01] Speaker 02: I'm going to have things in the tarot schedule. [00:12:03] Speaker 02: For example, in section 16, which is where we contend things go, there's plenty of tarot provisions that talk about optical. [00:12:11] Speaker 02: An optical disc, an optical disc reader, like a DVD player or a CVD reader, those are all these optical elements. [00:12:17] Speaker 02: Are we now going to say based on that broad definition, those all go in chapter 90, specifically in 9013 as in other [00:12:23] Speaker 02: optical instrument, you would have to if that was your decision. [00:12:27] Speaker 02: It would gut all of section 16 and anything having to do with optical. [00:12:31] Speaker 02: Because the importer would say, I have an optical disc reader here. [00:12:35] Speaker 02: Wow, it's described specifically in heading 85, such and such. [00:12:39] Speaker 02: But this court's decision, ADC, which said, no, optical means such and such, an optical instrument, because that's what you would define, note three, the chapter 90, pulls me out of section 16 and pops me down into chapter 90. [00:12:53] Speaker 02: Again, you could define it that way. [00:12:54] Speaker 02: And if you did, I would arguably lose. [00:12:56] Speaker 02: It doesn't matter policy. [00:12:57] Speaker 02: I would say that's too broad of a definition. [00:13:00] Speaker 02: You have to look at the context. [00:13:01] Speaker 02: All throughout section 16, there's sprinkling, if you will, of optical. [00:13:06] Speaker 01: But what you're describing, your parade of horrors, is subsidiary purposes. [00:13:12] Speaker 02: I would argue that's. [00:13:14] Speaker 02: I mean, it would be a case for another day. [00:13:15] Speaker 02: But in optical disk reader, I would respectfully submit the optical [00:13:20] Speaker 02: The element within your CD player is really not the subsidiary purpose. [00:13:25] Speaker 02: I mean, you cannot read the disc without that. [00:13:26] Speaker 02: It is how the thing works. [00:13:30] Speaker 02: Again, that's a different case for a different day. [00:13:32] Speaker 02: But I suppose that would, the tension would be, I suppose, the escape hatch. [00:13:36] Speaker 02: You would suggest it's a counterpoint to what I argued would be that. [00:13:40] Speaker 02: But I think it would wreak a lot of havoc in the customs bar and in practice. [00:13:49] Speaker 02: The section 16 provisions of... Correct. [00:13:55] Speaker 02: But going back here to this point here, again I would look at, we're trying to resolve, we have optical in both section 16, plenty of references, we have optical in chapter 90. [00:14:04] Speaker 02: I understand it's your job to figure out in this case where to draw that line, but the rule cannot simply be you have an optical element, there's some optical characteristic to this, therefore on those dictionary definitions you go in chapter 90. [00:14:19] Speaker 02: When the drafters of the HCS put that together, there's plenty of reference in our provision, 8517 multiplexers. [00:14:26] Speaker 02: This case involves a multiplexer. [00:14:28] Speaker 02: The explanatory notes 8517 specifically say that it covers multiplexers. [00:14:32] Speaker 02: The explanatory notes heading 8517 talk about optical wave instruments go in there. [00:14:37] Speaker 02: So to say just because it's optical and has an element, it goes in Chapter 9, I think, would be a gross disservice. [00:14:43] Speaker 00: OK. [00:14:44] Speaker 00: You're willing to rebuttal one. [00:14:45] Speaker 00: Let me get the other side. [00:14:45] Speaker 00: Thank you. [00:14:57] Speaker 04: Good morning, Guiding for the United States, and I'm here with Paul Smith, U.S. [00:15:01] Speaker 04: Customs and Border Protection. [00:15:02] Speaker 04: May I please record? [00:15:03] Speaker 04: The parties do not dispute that the merchandise meets all of the statutory requirements for classification in Heading 9013. [00:15:11] Speaker 04: There is no dispute that the merchandise meets the statutory definition of an optical instrument under additional U.S. [00:15:19] Speaker 04: Note 3 to Chapter 90. [00:15:21] Speaker 04: There is no dispute that the merchandise contains one or more optical elements. [00:15:25] Speaker 04: In fact, ADC [00:15:27] Speaker 04: Just conceded that. [00:15:28] Speaker 04: There is also no dispute that those optical elements are not used solely for viewing a scale or for some other subsidiary purpose. [00:15:40] Speaker 04: ABC's argument here. [00:15:41] Speaker 00: Can I just take you to the question I have? [00:15:43] Speaker 00: And I know we have an alternative argument about if solitaire doesn't apply. [00:15:49] Speaker 00: But let me ask you. [00:15:51] Speaker 00: Under the reading gear proposing, we have said these are the four factors or three factors you have to use, but they're not necessarily determinative in every case. [00:16:03] Speaker 00: What does that mean? [00:16:05] Speaker 00: We have criteria. [00:16:06] Speaker 00: This isn't a totality of circumstances in a lot of our tests that we have in patent law, where you look at the various facts and you decide which exists and which are going to be. [00:16:14] Speaker 00: If you have a factor or criteria, whatever you call it, [00:16:18] Speaker 00: that says the optical system must aid in human vision, yadada. [00:16:24] Speaker 00: Does that say that in one case, the court, CIT or us, will say, well, it doesn't aid in human vision, but it's still OK? [00:16:34] Speaker 00: And in another case, we'll say, yes, it does aid. [00:16:37] Speaker 00: I mean, either you've got a criteria, either it applies, or how do you say? [00:16:44] Speaker 00: It applies sometimes, so you reach different conflicting results. [00:16:47] Speaker 00: similar cases? [00:16:49] Speaker 04: I think that's a... I understand your concern, Your Honor. [00:16:54] Speaker 04: These are factors which should be considered under the Celestair factors. [00:17:00] Speaker 04: And we know that... And there's overlap between them. [00:17:03] Speaker 04: And that's one way you know that there's factors. [00:17:05] Speaker 04: I mean, the first factor is whether the device acts or interacts with light. [00:17:10] Speaker 04: The second one is whether the device permits or enhances human vision. [00:17:13] Speaker 04: Well, something that permits or enhances human vision is by definition [00:17:17] Speaker 04: going to interact with life. [00:17:19] Speaker 03: I guess I have the same question that Judge Prost does. [00:17:24] Speaker 03: What are we supposed to do with that language? [00:17:27] Speaker 03: Does that mean, for example, that with respect to hitting 2014, which was involved in Celestere, that we sort of make an article by article determination and weigh these factors? [00:17:41] Speaker 03: Or does everything in optical instrument in 1914 [00:17:46] Speaker 03: have to aid human vision, which is what Celestier seems to say. [00:17:51] Speaker 04: Well, as you pointed out, Your Honor, in 1914, the heading at issue there was navigational instruments. [00:17:56] Speaker 04: And so the sextant at issue was clearly a navigational instrument. [00:18:01] Speaker 03: But do you agree that you can't start weighing these factors to determine whether a particular instrument falls under 1914? [00:18:09] Speaker 04: I think it may be possible that under navigational instruments, under heading 9014, the permitting or enhancing human vision criteria or factor may weigh more heavily. [00:18:21] Speaker 03: Weigh more heavily? [00:18:22] Speaker 03: Or it's determinative in every case? [00:18:25] Speaker 04: I believe it's not determinative in every case, Your Honor. [00:18:27] Speaker 03: So different articles under 9014 could be within the article or not within the article, even though some don't aid in human vision. [00:18:38] Speaker 04: Well, so there's a Celestere case, and before they go to Taka, and there's a direct line of cases going back to this discussion that optical instruments generally deal with light or human vision or both. [00:18:52] Speaker 04: And so there's not a requirement that it do both. [00:18:57] Speaker 00: Wait, so you're saying the criteria has always been one [00:19:01] Speaker 00: But what about if you have similar goods? [00:19:04] Speaker 00: I mean, you're not saying that somebody, it's not determinative. [00:19:08] Speaker 00: So the CIT, we put out a test and we say, these are the four factors, but one is not necessarily determinative. [00:19:15] Speaker 00: So you can have goods under, let's stick with 90-13 now. [00:19:18] Speaker 00: You can have certain goods, a judge saying, it's not determinative, therefore I don't have to necessarily apply this criteria. [00:19:27] Speaker 00: And another judge saying, [00:19:30] Speaker 00: It's not determined, but I want to apply this criteria. [00:19:35] Speaker 04: Judges make those types of determinations all the time based on the facts in front of them. [00:19:40] Speaker 04: When you have various factors to be considered in certain types of instruments or certain, depending on the facts. [00:19:45] Speaker 00: So you would say in certain types of instruments, someone would say that it has to aid in human vision. [00:19:52] Speaker 04: There may be. [00:19:53] Speaker 00: But in other goods, [00:19:57] Speaker 00: somebody is free to say no, it doesn't, we don't care whether it aids in human vision. [00:20:06] Speaker 00: Right? [00:20:06] Speaker 00: Is that what you're saying? [00:20:07] Speaker 04: Your Honor, I mean, we have three criteria here that Celestere tells us to evaluate. [00:20:12] Speaker 04: And Itaka says none of these, not any one of these criteria are determinative. [00:20:16] Speaker 04: So it's not just this criteria at issue as to whether it permits or enhances human vision. [00:20:19] Speaker 00: Well, that could mean something else, right? [00:20:22] Speaker 00: Not all of these are necessarily determinative because [00:20:27] Speaker 00: I mean, couldn't that mean something else if there were other factors or other things going on? [00:20:31] Speaker 00: So obviously, these factors aren't going to be determinative. [00:20:34] Speaker 00: Something else is going to be determinative. [00:20:37] Speaker 00: That's a kind of nebulous statement, isn't it? [00:20:40] Speaker 00: None of these is necessarily determinative or whatever the words are that we used. [00:20:48] Speaker 04: Well, the two of those criteria are statutory. [00:20:51] Speaker 04: So as to whether it has optical elements and whether those optical elements [00:20:57] Speaker 04: must not be used for a subsidiary purpose or for viewing a scale. [00:21:01] Speaker 00: So you read that to say, with respect to some goods and some heading, it is determinative whether or not it aids in human vision. [00:21:12] Speaker 00: But in another case, it might not be. [00:21:15] Speaker 01: A pair of plain glass glasses used for children's play acting where they pretend that they're wearing glasses [00:21:24] Speaker 01: would have an optical element. [00:21:25] Speaker 01: That is to say, they're plain glass, which allows the light through. [00:21:30] Speaker 01: But they're not intended for use in human vision. [00:21:33] Speaker 01: And the court could say that weighs more heavily in this instance. [00:21:37] Speaker 04: Your Honor, so that optical elements actually must do more than just allow the passage of light. [00:21:45] Speaker 04: They must modify or change the light in some way. [00:21:49] Speaker 04: So in your example of just the plain lenses that do nothing, [00:21:53] Speaker 04: to the light, that would not be sufficient. [00:21:55] Speaker 04: Here, it's undisputed that the optical elements in these instruments do manipulate the light. [00:22:03] Speaker 04: Does that answer your question? [00:22:05] Speaker 01: No. [00:22:06] Speaker 04: I'm sorry? [00:22:08] Speaker 01: No, I was just throwing out a hypothetical where there would be things that clearly don't fall within human vision and yet have some element of [00:22:22] Speaker 01: an optical, some optical element. [00:22:28] Speaker 03: That permits human vision. [00:22:29] Speaker 03: Yes, Your Honor. [00:22:32] Speaker 03: But your statement is they'd still be outside of 1913 and 1914 because they don't change the light. [00:22:39] Speaker 04: That's right, Your Honor. [00:22:40] Speaker 04: I mean, I can't speak for a certain... They're rose-colored glasses. [00:22:55] Speaker 04: If you're honest, I have a little further questions. [00:22:58] Speaker 03: Are there other tariff provisions where we've framed a test in this court for whether an object is within the tariff provision where there's a weighing of different factors? [00:23:12] Speaker 03: I mean, I know there's essential character and subsidiary purpose and those kinds of things, but is there another example where we're weighing different criteria? [00:23:24] Speaker 03: whether it's under the tariff? [00:23:29] Speaker 04: I believe there are, Your Honor. [00:23:30] Speaker 04: I apologize that I can't think of an example at this time. [00:23:33] Speaker 01: I feel like that's... ADC argues that 9013 isn't an EO nominee provision because it doesn't name a specific article of commerce. [00:23:45] Speaker 01: Yes, Your Honor. [00:23:46] Speaker 01: Have we held similarly specific provisions to be EO nominee? [00:23:52] Speaker 04: I think... [00:23:53] Speaker 04: So we have certain provisions that are clearly to nominate. [00:23:57] Speaker 04: The other optical appliances and instruments, Your Honor, the government would agree that those are, it's a descriptive provision, and it doesn't appear to name a specific kind of good, and it's more of a descriptive provision. [00:24:12] Speaker 04: I don't think that changes the outcome here, but I would agree with that. [00:24:18] Speaker 01: Have you identified any common or commercial dictionaries defining the term optical appliances, [00:24:23] Speaker 01: optical instruments as a whole? [00:24:26] Speaker 04: No, I don't believe so, Your Honor. [00:24:27] Speaker 04: We submitted definitions of optical elements. [00:24:30] Speaker 04: And that was what we found in McGraw-Hill's scientific and technical terms. [00:24:36] Speaker 04: And then we have definitions of instrument and appliances in general from the Trump case. [00:24:40] Speaker 04: And I don't believe that the parties disputed that these qualified as instruments or appliances. [00:24:47] Speaker 00: Thank you. [00:24:48] Speaker 04: Thank you, Your Honor. [00:24:56] Speaker 02: Just a few points to carry on, I think, was one of the first questions, which is, what did that phrase in Ataka mean about those factors not being determinative in every case? [00:25:04] Speaker 02: I guess my last comment on that issue would be, again, we cited it, and the government has cited this long line of cases involving the phrase optical instruments. [00:25:15] Speaker 02: Ataka is the only case that has that reference in there. [00:25:17] Speaker 02: It's under the prior tariff schedule, the two says. [00:25:21] Speaker 02: And I guess it's a fairly recent pronouncement from the predecessor court. [00:25:26] Speaker 02: on optical instruments. [00:25:32] Speaker 02: But to me, the overwhelming weight of authority from the appeals court and the trial opinions are of less influence and less relevance here. [00:25:39] Speaker 02: But for 100 years, the human aid or enhanced human vision has been a criteria. [00:25:43] Speaker 02: I don't read the cases, and I think a fair reading is all the cases have that element. [00:25:48] Speaker 02: So whatever that phrase means about it not being the term of those factors in every case seems an aberration. [00:25:55] Speaker 02: The only case we have here under the HTS US is Celestere. [00:26:00] Speaker 02: I suppose you could distinguish and say that's a different heading. [00:26:03] Speaker 02: But the language is the same. [00:26:04] Speaker 02: As I said earlier, I don't think that should change the result from heading to heading unless there's a reason in the context of the headings. [00:26:11] Speaker 03: Are there other tariff provisions where there's sort of a weighing of different factors aside from the examples, the more general examples that I gave? [00:26:20] Speaker 02: I cannot think of any. [00:26:22] Speaker 02: I mean, the difference, I guess, [00:26:24] Speaker 02: Short answer is no, I cannot think of any essential character, which you referenced earlier, is a little more, I can use the technical phrase, loosey-goosey, because it allows a judge to say, no, the value is the most important thing, or the weight, or whatever those criterias are, and there's not a set definition. [00:26:39] Speaker 02: But Celestere criteria is nothing like essential character, and I cannot think of another provision that has a multi-factor test that's judicially created. [00:26:50] Speaker 02: There are certainly ones, for example, computers, [00:26:52] Speaker 02: that go in heading 8471. [00:26:54] Speaker 02: The tariff might lay out, you have to meet this, this, and this criteria. [00:26:58] Speaker 02: But that's statutory. [00:26:59] Speaker 02: I assume I'm out of time or over my time. [00:27:01] Speaker 02: But my point last on Celestier is just simply, Celestier says the criteria is A, B, and C. And you meet it or you don't. [00:27:08] Speaker 02: And to me, principles of psoriasis should carry that to this case as well. [00:27:12] Speaker 00: And with that, I have no further questions. [00:27:13] Speaker 00: Thank you. [00:27:14] Speaker 00: We thank both sides for taking this. [00:27:14] Speaker 02: Thank you for your time. [00:27:17] Speaker 00: That concludes our proceeding. [00:27:19] Speaker 03: All rise. [00:27:21] Speaker 03: The Honorable Court is adjourned until tomorrow morning. [00:27:24] Speaker 03: It's an o'clock a.m.